Linton v. Linton
| Decision Date | 11 July 1972 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 499 P.2d 174,17 Ariz.App. 560 |
| Parties | Winifred E. LINTON, Appellant, v. Walter LINTON, Appellee. 1538. |
| Court | Arizona Court of Appeals |
Bellamak & Mitchell by Ferris W. Bellamak, Scottsdale, for appellant.
Flynn, Kimerer, Thinnes & Galbraith by John J. Flynn, Phoenix, for appellee.
This is an appeal from a judgment of the Superior Court finding 'changed circumstances' and modifying a prior divorce decree by eliminating entirely appellant's monthly alimony award. Appellant generally questions the character and sufficiency of the evidence to support the trial court's finding of 'changed circumstances' and contends that the trial judge abused his discretion by modifying the original decree of divorce. We agree with the appellant and reverse. The parties' marriage of 28 years was terminated by a divorce decree filed on July 24, 1969, in favor of the appellant. The decree awarded appellant:
'. . . for alimony the sum of $1,150.00 per month payable on the 15th day of each and every month beginning on August 15, 1969, for so long as she shall live and remain unmarried.'
In addition, the decree also incorporated within it a property settlement agreement executed by the parties which agreed to the alimony payment in the sum of $1,150 each month, and which fairly divided a portion of the community property between the parties. The remaining portion of the community property could not conveniently be divided at that time, primarily because of adverse tax implications, and was placed in a trust 'for the mutual benefit' of the parties. The value of this trust property was estimated at $354,112.00. The trust agreement provided that it could be revoked by the parties at their option. At the suggestion of the appellee, this was done on March 26, 1970 by their execution of a formal written agreement to revoke the trust. The appellee testified that he received $216,776.00 of the trust property while the appellant received $137,336.42 of it. The appellee testified that the difference in the sum of the distributed trust Res resulted from the fact that there would be no capital gains tax in the event of the sale of the appellant's share but that his share would be '100 per cent taxable' or really '25 per cent of the $216,000', and that the distribution had been essentially equal between the parties.
On April 28, 1970, just one month after the execution of the agreement revoking the trust and nine months after the filing of the decree, the appellee filed a petition in the Maricopa County Superior Court alleging a substantial change in the circumstances of the parties and praying for a modification of the decree of divorce eliminating appellant's alimony award. Following a trial on the issue, the trial court found that the 'circumstances of the parties have materially changed' and entered judgment modifying the July 24, 1969 divorce decree eliminating alimony after June 15, 1970. Appellant appeals from this judgment and the denial of her motion for new trial.
The specific questions raised by appellant on appeal are the following:
'I. Did the husband's placement on inactive status with his law firm constitute a change in circumstances legally sufficient to justify modification of the alimony provisions of the divorce decree?
II. Did the revocation of the parties' trust agreement and subsequent distribution of trust assets constitute a change in circumstances legally sufficient to justify modification of the alimony provisions of the divorce decree?
III. Does the evidence support the court's findings that the wife's necessity for alimony has ceased and that her expenses have decreased; and, has there been a sufficient change in circumstances regarding these matters to justify the modification of the alimony provisions of the divorce decree?'
Many of the rules of law relating to the modification of a decree of divorce are set out in Nace v. Nace, 107 Ariz. 411, 489 P.2d 48 (1971) and include the following: That a trial court awarding alimony retains jurisdiction to modify the alimony award at any later time 'as may be just under the circumstances' (A.R.S. § 25--321); that the criteria to be considered in determining whether to modify an alimony award in a decree of divorce,
(107 Ariz. at 413, 489 P.2d at 50);
that the most important function of alimony is to provide support for the wife 'as nearly as possible at the standard of living which she enjoyed during marriage, and thereby to prevent the wife's becoming dependent upon public support or relief'; that there must be a 'substantial' change in the financial circumstances of the husband or wife; that the decision as to whether there has been a sufficient change in circumstances to modify an award of alimony lies within the sound discretion of the trial court and will not be interfered with unless it is abused.
In addition to the foregoing, in Norton v. Norton, supra, our Supreme Court made clear that the change in circumstances justifying a modification of alimony must be a change of circumstance that had occurred since the entry of the original decree. It is at this point that the sufficiency of the evidence to support the trial court's determination of changed circumstances in the case at bar runs into difficulty. The great majority of the evidence presented by appellee related to facts and events that pre-dated the property settlement agreement and decree of divorce. When this evidence is disregarded, as it must be, there is little left to support a finding of a substantial change in circumstances justifying a modification of the decree. The burden of proving the changed circumstances, of course, is upon the party seeking modification.
On order to demonstrate our thinking in this regard, we turn first to the stated purpose of the property settlement agreement which reads:
'WHEREAS, the parties now...
To continue reading
Request your trial
-
Van Dyke v. Steinle
...to establish such changed circumstances in this case is on husband, as the party petitioning for modification. Linton v. Linton, 17 Ariz.App. 560, 563, 499 P.2d 174, 177 (1972). In Smith v. Mangum, we recognized that, unlike remarriage, cohabitation does not result in the accrual of quasi-m......
- U.S. Fidelity & Guaranty Co. v. Baird's Bread Co., 1
-
In re the Marriage Of: Jerris S. Keller
...at the time the decree was entered or that occurred since the decree was entered." He relies primarily on Linton v. Linton, 17 Ariz. App. 560, 563, 499 P.2d 174, 177 (1972), for the proposition that the changed circumstances justifying a modification of spousal maintenance must be circumsta......
-
Burnette v. Bender, 1
...plans, the fact that [wife] sold her own asset is not, in and of itself, a changed circumstance." Id.; see also Linton v. Linton, 17 Ariz.App. 560, 564, 499 P.2d 174, 178 (1972) that distribution to each party of trust assets resulted in "the manner of their holding the property chang[ing] ......